BLASPHEMOUS LIBELS.

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1888 provides that no protection shall be afforded a report of any blasphemous matter. A blasphemous libel has been since the case of R. v. Carlile (3 B. & Ald. 161) recognised as an offence against the common law. In the case of denying the authenticity of the Scriptures, Abbott, C.J., and all the judges held with him that the defendant was guilty of a blasphemous libel (R. v. Waddington, 1 B. & C. 26), Best, J. stating "that a work denying the truth of Scriptures and published maliciously is by common law a libel." Denman, C.J., held that a publication tending to cast disgrace on or question the Old Testament was a libel (R. v. Hetherington, Folkard, 598, quoting 5 Jur. 529); and in Cowan v. Melbourne, Kelly, L.C.B. held that a person could justifiably evade a contract to let certain rooms because the plaintiff proposed to deliver in them lectures against the truths of religion (4 L. R. 2 Ex. 230). Bramwell, B., agreed with Chief Baron Kelly, laying down the doctrine that "blasphemy consists in the character of the matter published, and not the manner in which it is stated." A case of R. v. Pooley, tried before Coleridge, J. (3 Folkard's Starkie, p. 600), turns a good deal upon the principle "that a wilful intention to pervert, insult, and mislead others by means of licentious and contumelious abuse applied to sacred objects, or by wilful misrepresentations or artful sophistry calculated to mislead the ignorant and unwary, is the criterion and test of guilt. A malicious and mischievous intention, or what is equivalent to such an intention in law, as well as morals, a state of apathy and indifference to the interests of society, is the broad boundary between right and wrong." In the opinion of Mr. Justice Stephen, this principle of Starkie was that adopted in the case of Pooley.

In the case of R. v. Ramsay and Foote (15 Cox's C. C. 35), Coleridge, C.J., held that the mere denial of the truth of the Christian religion or of the Scriptures was not enough per se to constitute such a writing a blasphemous libel, so as to render the writer or publisher indictable. But "indecent or offensive attacks on Christianity or the Scriptures, or sacred persons or objects, when such attacks are calculated to outrage the feelings of the general body of the community, do constitute the offence of blasphemy, and render the writer or publisher, or both, liable at common law to a criminal prosecution." The punishment for a blasphemous libel is fine and imprisonment, and under 9 & 10 Wm. 3, c. 2, a conviction brings with it incapacity to hold or enjoy any ecclesiastical, civil, or military office or employment. If on an indictment of several persons jointly for publishing a blasphemous libel in a paper it turns out that two of them who are respectively editor and publisher, had been already convicted on a charge of publishing similar libels in another number of the paper, the third party, whose defence is that he is not connected with the paper, can, upon his application, be tried separately, as his trial with the others might possibly prejudice his defence, especially if he desires to call them as witnesses. He can call them as witnesses on his behalf, R. v. Bradlaugh (15 Cox's C. C.). Here it was also ruled that discussing the truths of religion in an argumentative, decorous manner is not a subject for a criminal prosecution, but that, if the language is offensive, indecent, or shocking, it properly is.

Sects. 4, 7, 8, 9, of the Libel Act of 1888 deal with some changes in criminal procedure of much importance, and had better be referred to (see infra).

Principal cases on subject: Maitland v. Golney, Cam

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pagnon v. Martin (2 East, 434), where Laurence, J. held any variation was fatal; Walters v. Mace (2 B. & Ald. 756); R. v. Carlile (3 B. & Ald. 161); R. v. Waddington (1 B. & C. 26), dealing with imprisonment. The statutes are 1 Ed. 6, c. 1; 1 Eliz. and 12 Eliz.; 3 James 1, c. 21; 9 & 10 Wm. 3, c. 32 s. 1; 53 Geo. 3, c. 160.

CRIMINAL INFORMATIONS-WHEN GRANTED.

In R. v. Labouchere (12 Q. B. D. 320) upon an application for leave to file a criminal information in respect of a libel upon a deceased nobleman made by his representative who was not resident in this country, it was held that the Court, in the exercise of its discretion, must reject the application, for the rule to be collected from modern decisions is that a criminal information can only be granted at the suit of a person who is in some public office or public position, and not at the suit of private individuals, who have their remedy by private actions. In this same case another important principle was established, that the application being from a person not residing in the country was in itself a strong reason for rejecting it, and, further, that an application for a criminal information for a libel upon a deceased person made by his representative will not be granted. The judgment of Coleridge, C.J., is worthy of some notice. Delivering the united decisions of Denman, Field, Hawkins, Mathew, JJ., he agreed with and endorsed the opinion of Kenyon, C.J., in R. v. Topham (4 T. R. 126) that the Court should not grant an extraordinary remedy, nor should a grand jury find an indictment unless the offence be of such signal enormity that it may reasonably be construed to have

a tendency to disturb the peace and harmony of the community, where, in such a case, the public are justly placed in the character of an offended prosecutor to vindicate the common right of all, though violated only in the person of an individual for the malicious publication of even truth itself (this was before truth could be pleaded). In R. v. Critchley (4 T. R. 139); R. v. Paine (Carth. 405); R. v. Topham (supra), the Courts inclined to favour the principle, that private character was alone to be vindicated and protected by the machinery of private actions. In R. v. Mead (4 Jur. 1014) the necessity for the person aspersed himself making the application was laid down clearly. Cases bearing on subject are R. v. Kynnersley (1 W. Bl. 294), where Lord Clanricarde sought to restrain a newspaper from giving a ludicrous account of his appearance with an actress; R. v. Epps (T. T. 1831); R. v. Rintoul (T. T. 1831); R. v. Smith (M. T. 1831); R. v. Gregory (8 Ad. & E. 907); R. v. Latimer (15 Q. B. 1077). Of fifty cases from 1860 to 1880 of such applications, only four were from persons not in prominent public positions. In R. v. Lord Winchelsea, Lord Blackburn said that the remedy had usually and properly been confined to cases of magistrates, ministers, public officers, and persons in high position, whose character was of such public importance as to require immediate vindication, and in R. v. Heedley he reiterated the same principle. All these decisions seem grounded on that excellent exposition of the law contained in Blackstone, book iv. c. 23, p. 200, where he says: "The objects of the other species of information filed by the Master of the Crown Office upon the complaint or relation of a private subject are any gross and notorious misdemeanours, riots, batteries, libels, and other immoralities, of an atrocious kind not peculiarly

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tending to disturb the Government (for these are left to the care of the Attorney-General) but which on account of their magnitude or pernicious example deserve the most public animadversion." In Yates v. The Queen (14 Q. B. D. 1) it was ruled by the Court of Appeal that "criminal prosecutions" under the Newspaper Libel Act of 1881 included prosecution by indictment, by criminal information, and by applications before a magistrate, but that they are not words which are generally used to describe proceedings by criminal information, as such could not be filed ex officio unless the Attorney-General was of opinion that the matter was of that importance to proceed in that way. For an application for an information by a private person the prosecutor must bring into Court the libel and an affidavit that he is innocent of what is charged against him in the libel, and then only a rule nisi is granted, and the alleged libeller has an opportunity before the rule is made absolute of giving his explanation, and the reasons, if any, why the proceeding by information should not be allowed. And in the case of ex officio information there is this additional protection that there is the responsibility of the highest officer of the law, the Attorney-General, that the case was fit for being proceeded against by criminal information. In R. v. Labouchere (supra) Lord Denman went so far as to express an opinion that if a newspaper or an individual were to shew by repeated attacks or wide circulation of those attacks upon a private individual, whether a subject or a foreigner, a persistent determination to persecute, "he thought it the duty of the Court to protect the individual by making the rule absolute." In R. v. Allison (L. T. vol. lxxiv. p. 109), it was held by the Court of Crown Cases Reserved, that the fiat of the Attorney-General should mention the

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